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Old 10th October 2008, 16:41   #16
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Extremely informative. Thanks
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Old 10th October 2008, 16:49   #17
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Thanks very much backseatdriver. This thread is very helpful!
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Old 10th October 2008, 16:50   #18
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Default The Sentence

This is one "optional" stage. If the accused is acquitted, there ends the matter. Bonds executed by the accused and sureties are cancelled. If cash was deposited, it is directed to be refunded.

If the courts finds the accused guilty of the allegations, the court ought to hear the accused on the matter of sentence; but in minor matters, there is no requirement to hear the accused. (And that is why the smart lawyer will ask for benefit of probation if he gets even a small whiff of the judge wanting to convict the accused.)

But that is because, in minor matters, as per the law the accused should be released on probation.

In most traffic offence related cases, the punishment is only fines, and the court will therefore simply go on to impose the fine.

But what if the court wants to send the accused to jail?

What if only a fine was imposed, and you do not have the money to pay?

Take courage. You did not start from home, praying that you will be acquitted, only to spend the night in jail. The legal system is fair here.

You can file an application for time to pay the fine. But pay whatever you have with you right away.

Or file an application for time to file appeal, and seek interim bail.

At this, and all previous stages, do not leave the court premises - even if only to go to the ATM - without the court's permission, or till the case is adjourned for the day.
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Old 10th October 2008, 17:16   #19
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Default Choosing an advocate

If the question is "do I need a lawyer", my answer is - "He who argues his case himself, has a fool for an advocate".

Things are very complicated. The process I described above easily runs into 4 volumes of procedural law alone. (Procedural law means the law which governs the procedure in court room); another 4 volumes on the rules relating to evidence (what can be admitted, what is not relevant, what questions can be asked in cross examination, etc). And a good treatise on Motor vehicles act is luckily only a single volume affair, but still will be about 9 inches thick. And most prosecutions involve the Indian Penal Code - add another 5 volumes of legalese.

Plus some simple rules special to each state called "Criminal Rules of Practise" which deal with what paper to use, what margin to leave on applications / petitions, how to fold them, how to bind them if an application is more than one page. how many copies to be filed, etc.

Plus some not so simple rules on value of stamps to be affixed on petitions.

And sticking to correct forms while making applications for bail.

You better hire a lawyer. Or buy books whose weight is sure to strain your pocket and also the suspension of your car) and go through them.

And he better be one who regularly appears in the court where the case is going on - that he knows the judge (I mean, his attitude, and "leanings") better.

Stay away from a lawyer who claims to be able to bribe the judge. Fortunately, bribery is fairly uncommon in the Indian judiciary. The lawyer is certainly only eating away your money. (And there are clients who will happily pay up 50K to bribe the judge, but will crib about paying 50 Rs. to the lawyer).

A good lawyer should have 2 skills first, of course, is presenting your case. The second, equally important skill is to manage the docket - means to reach the court on time, make sure that you have the next posting dates accurately, that the client is informed of the next posting date, to make sure that an application for condonation of absence is filed if the accused does not appear on a posting date, etc.

So, an "outstation" advocate is a no-no, IMHO. Your mileage may vary, however. But of course, in more complicated matters (NOT the traffic offences), and when you have to conduct a case in rural areas, you may find local legal talent insufficient.

You can always change your lawyer midway through the case. Simply ask him to hand back the case file (he has the "charge sheet" - remember? remember to take a copy at the initial stages itself - so that a vanishing lawyer does not leave you high and dry).

And ugh. Oh. I forgot to add. This is a criminal prosecution. As per the law you are entitled to legal assistance at trial. Therefore, if you do not appoint a lawyer yourselves, the court will appoint one for you. So, do you want to make the mistake of identifying the lawyer yourselves, or you want to make the court commit that mistake for you?? (just joking). These appointments are made by the court from a panel - there will be a panel of senior (above N years standing at the bar) and a panel of junior lawyers.

Last edited by BaCkSeAtDrIVeR : 10th October 2008 at 17:21.
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Old 10th October 2008, 17:32   #20
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Default Compounding and filing argument notes

@Bass&Trouble

The police / investigating and / or prosecuting agency is, in the normal course, only empowered to file a prosecution in the court.

In several situations, they are also empowered to "compound" the offence, by accepting a fine.

So, when the police "Imposes" a fine on you, they are using the "compounding" provisions of the law.

When faced with such a notice, you can opt not to compound; hence the notice would contain a date to attend court if you choose not to compound and pay the fine.

If you choose not to compound, and take the matter to court, all other procedures would be similar, and you reach court at the stage where the charge is framed. (The summons has already been served on you.)

@srijith - yes, you can file an "argument note" whenever an oral argument takes place. The problem is with aspects relating to disclosure of accused's side of the story I have pointed out; and the reluctance of the courts to devote time to preliminary stages of a prosecution.
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Old 10th October 2008, 17:51   #21
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I hope all of you find this useless. ;-)

I mean that you do not have to resort to knowledge you gain from here. Getting involved in an accident is traumatic, even if it is a a minor brush. And it is worse when there is damage and finally, a court case. The information posted above is very sketchy; there are plenty of details, which need to be navigated with the assistance of a good lawyer.

I really hope you find this useful, and error free.

In case you find errors, please post them here; and think twice before suing me for the errors because you better not want to find what I used to be before.

And take consolation in the fact India is not alone where contesting a prosecution for traffic rule violation is considered "cost - ineffective".

Last edited by BaCkSeAtDrIVeR : 10th October 2008 at 17:52.
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Old 11th October 2008, 02:20   #22
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Backseatdriver. Brilliant and informative --- and a huge amount of work.

Here's another vote of appreciation
Quote:
I hope all of you find this useless. ;-)
I went on a basic sailor's sea survival course once, life jackets. signals, abandoning ship. At the end of the course, the instructor told us he hoped we'd completely wasted our time. It took a second or two to register
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Old 18th January 2009, 09:39   #23
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Hola Backseatdriver,

This is superb on criminal police cases! It would be nice, if you could ellaborate on the MACT cases, and do's and don'ts in various scenarios (pleading guilty/not-guilty), also how should we deal with insurance company (private or nationalized)? That would really help.
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Old 19th January 2009, 11:54   #24
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Backseatdriver !! This is a fantastic thread and kudos for the effort put in by you. A Dummies Guide to Criminal Law in the country !!
I keep telling people that when you pray to God you should do that for only two things : One never to get entangled with the legal system of the country and second never to land in a hospital as an in-patient !! Both are equivalent to 3rd degree torture !!
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Old 21st January 2009, 21:45   #25
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Default What is a crime?

In response to a PM I received, a few more details. Mostly legalese.

Scenario1.



Consider yourselves, and your two neighbours, X and Y. All three of you are living in independent houses, with a compound around the house and walls in between.

There is a coconut tree in X's compound, and a nut falls on Y's house, causing damage.

Now, what would you feel when you hear the news? Most people would be nonchalant. Rest will find a good subject to gossip at the next residents' association meeting.

Scenario 2.

Same as above. Some miscreant has thrown a coconut at Y's house, causing damage to it.

Did you feel scared on hearing the news?

Why?

And that is what is called a crime.

A crime is an act which causes damage to people not directly involved in the events.

More to follow....
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Old 21st January 2009, 22:00   #26
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Default Civil damage

(mods - please do not merge posts - dealing with separate subject for clarity's sake).

A civil damage may or may not involve a crime.

ALL civil damages - "tort" in legalese - involve damages or injury or harm to a particular individual or may be a group of individuals.

Almost all crimes are civil wrongs.

Now consider this situation:-

Quote:
You store water in a tank, which bursts, and water flows into the apartment below yours, causing severe damage to his house hold articles, electronic equipment, etc..
Storing water in your home / apartment is no crime. Nor is it a crime (unless it is a very exceptional case) if the tank bursts. But the water you stored escaped from the tank, and somebody has suffered harm. You are liable for the damages caused to the other person.

If the guy stored his business files / papers and those got damaged, you may saddled with a still higher liability. So, even if you could not predict the damage caused, you are still liable.


That is why you need insurance.

While civil wrongs are litigated in a normal civil court (Munsiff / "civil judge" / District court etc. in most places in India), litigation for civil damages (what lawyers call "damages for tortious wrongs") are to be conducted in special tribunals called "Motor Accidents Claims tribunals".

The individual judges at the MACTS are usually normal judges, who would be civil judges / district judges if they were posted to some other court.
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Old 21st January 2009, 22:43   #27
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Default The complex relation between crime and torts.

All over India, persons accused of a crime are prosecuted at the court of "Judicial Magistrate of First Class". In the Metropolises (New Delhi, Calcutta, Mumbai, etc) - they are called the "Metropolitan Magistrates".

A crucial difference between a crime and "tort" is the concept of "responsibility" and "liability".

In torts, if you are found to be "responsible" for the act which caused the damages, you are "liable" for all the consequences, (in most cases) regardless of whether the damage is forseeable or not.

"Responsibility for act = liability for damages caused by the act" is the mathematical way of putting it for civil cases.

Hence, in MACT cases, if you are sued for runing over a millionaire, you will be liable to pay his family millions in damages; and if the unfortunate victim was a pauper, your liability will be very minimal.

In criminal cases, it does not matter whether the victim was a millionaire or a pauper (unless you are the millionaire and are driving a BMW or a Prado / Pajero on the foot path - and the victim is a pauper- but that is a a joke!!!).

In criminal cases, the "laibility" is the punishment (award of damages being a discretion, rarely exercised in India). Fines ARE punishments - not damages. Damages is sort of reimbursement for the victim.

Add to this, the fact that reasons for finding a person "responsible for the act" in a civil case are different from the concept of responsibility in a criminal case. This is can be best explained by this example:-

Quote:
Tie rods of a brand new car fails, resulting in car veering off the road, running over a pedestrian.
.

The driver is extremely unlikely to be held guilty in a prosecution, but is almost certain to be liabile in civil cases.

And now this scenario.

Quote:
Collision between two vehicles going in opposite direction, in midle of the road.
Both drivers would be guilty of negligence in criminal cases, but in a civil case, would be entitled to damages only proportional to their negligence. The court will take evidence, and arrive at a finding regarding to the extent to which they are liable.
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Old 21st January 2009, 22:50   #28
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Default Are there disadvantages if I plead guilty??

Mostly, no.

As I said in the previous post, reasons for nailing responsibility and the extent and nature of liability are entirely different in civil and criminal cases.

There may be the rare case where findings of civil courts are taken into consideration by criminal courts or the other way around. (Eg- plea of guilt in drunken driving offence - almost certain to be held against you in a civil case).

So, why are they are insisting on a copy of FIR when I want to file a MACT case?

That is more as an evidence to prove the incident actually took place. An FIR is obviously different from the judgment in a criminal case.

Next - relationship with insurance.
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Old 21st January 2009, 23:06   #29
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Default Insurance liability

Insurance policy is a contract between you and the company. The law requires you to have a insurance polity for your vehicle to cover liability to third parties. The premium for this risk is referred to as "TP' in your policy.

The policy would also require you to notify the insurance company as soon a possible in case of an accident. You should. They may require you to fill in a looooooooooooooooooooooong form as a part of this process. This is required to avoid insurance frauds.

As a side note, I may add that that agreement with victim where he agreed not to initiate legal proceedings against is most probably not worth the paper on which it is written - even if it is written on stamp paper. Lawyers and courts have huge arsenal of weapons to demolish such agreements in courts. At best, they serve as a psychological deterrent to the victim from dragging you to court.

The insurance policy will also require you NOT to admit any liability in case of accident / loss to third party. This applies only to civil liability. For reasons already discussed, liability / responsibility are different in civil and crimial cases, and a plea of guilt in criminal court would have no bearing in civil case for damages.

Insurers have very little scope to repudiate their liability (ie. disown the policy); and dishonour of cheque is one such reason where the insurer may disown / refuse to honour the policy. So, be very particular to ensure that the cheque you issued to the company gets cleared by your bank.

And insurance agreements also have clauses where they agree to bear your legal costs if you are sued. So, if the insurer admits the policy in court, you should not have to bother about your financial liability in civil courts. But, do remembe to co-operate with the insurer and proivde them with all required documentation and information as required by them.

Failure to co-operate with the insurer may mean that the insurer may sue YOU for the amounts they paid - since you have not performed your part of the bargain (remember?? Insurance policy is an agreement). And your role in that agreement is not limited to payment of the premium.
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Old 21st January 2009, 23:13   #30
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Default Paying fines to the police officer.

As per the constiution, the police merely investigates and files the evidence in a case before the court. It is for the courts to impose punishment for law breaking.

Then, what is the power of police officers to impose fines on you?

The process is called "compounding", where police is granted the power NOT to prosecute if the accused pays a fine into the police station. These provisions are generally strictly enforced and discretion extremely limited through various administrative orders.

And such orders are very strict and provide only a very narrow level of discretion for the police officers. So, they are extremely unlikely to invoke the power of compounding in an accident case. YMMV.

And finally, never hesitate to consult a lawyer (and pay him for the time :-) We Indians are very reluctant to pay for avoiding litigation - so do not blame lawyers if they lead you to litigation) whenever you have doubts. The legal system is an intriciate labyrinth of rules and exceptions to those rules. And it si very difficult to explain evidence (not eveyr piece of information /knowledge is admissible as evidence in courts), and procedures to a layman.

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